CHAN WING YIU v. HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMC 60/2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 205 OF 2008)

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.  The applicant was convicted of fraud contrary of s.16A(1)(a) of the Theft Ordinance, Cap 210. It was alleged that he had dishonestly deceived the Education Department of a payment of subsidy of slightly more than $18,000 granted under the mortgage interest subsidy scheme in connection with his purchase of a property. It was said that with knowledge that once he moved out of the property, he would no longer be entitled to the subsidy, he continued to receive payment between February 2005 and November 2006.

2.  The applicant accepted that when he applied for this subsidy, he was aware of the live-in requirement. His defence was that due to various difficulties encountered in his work and his family problems, he had forgotten about this requirement and hence there was no dishonesty in continuing to receive such payments. Evidence was adduced, which was accepted by the magistrate, to the effect that the applicant, who was a teacher of more than 30 years and a person of good character, was a very fervent Christian and had donated 10% of his monthly earnings to the church.

3.  In seeking leave to appeal to the Court of Final Appeal on the substantial and grave injustice ground, Mr Wong Man Kit SC, counsel for the applicant, makes two points. First, he argues that it was inherently improbable that the applicant who had regularly made donations to the church would have dishonestly deceived such a small amount of subsidy; that it was the applicant himself who voluntarily disclosed in a random check in 2006 that he was in breach of the live-in requirement and that if the lower courts had properly analyzed and considered such evidence, he should not have been convicted; thus the conviction was, counsel argues, perverse. This submission cannot be accepted. The magistrate had clearly considered carefully this aspect of the evidence before coming to a conclusion on the charge. Counsel’s submission is tantamount to asking this Court to retry the case and to say that the fact that the applicant had made regular donations which far exceeded the amount of subsidy in question is conclusive evidence of his innocence. That cannot be right. We do not think there is anything inherently improbable even in a person of previous good character committing an offence of this nature or that the conviction was in any way perverse.

4.  The second complaint is that the applicant had been deprived of a fair trial. It is submitted that the magistrate had relied heavily on the documents showing that the applicant had signed receipt every month for the subsidy payments to conclude that the applicant had not forgotten about the live-in requirement but had failed to accord the applicant an opportunity to deal with this point or invite his counsel at the trial to address on this issue. This submission is also unsustainable. The crucial issue in this case is whether the applicant was dishonest in continuing to accept the subsidy after he had let the property out in February 2005 and this depends on whether he knew he was no longer entitled to the subsidy. The fact that the applicant had signed monthly receipts of this subsidy was a factor which the magistrate was perfectly entitled to take into account when considering this issue. For nearly 20 months since he had moved out of his property, the applicant was still receiving this monthly subsidy. What he thought he was signing receipt for each month and whether he knew he was still entitled to such monthly payments when he was signing those receipts are clearly relevant. These are matters of inference to be drawn from the evidence. There is no question of the magistrate failing to accord the applicant an opportunity to deal with this point.

5.  We are not persuaded that it is reasonably arguable that the applicant had suffered any injustice. The application for leave is therefore refused.